[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

This post, by Abhinav Sekhri and Mansi Binjrajka, first appeared on the Proof of Guilt Blog, and has been cross-posted with permission.

Chief Justice of India, Hon’ble Mr. Justice Sharad Aravind Bobde, just yesterday, took suo moto cognizance of the working of the criminal justice system in relation to sexual offences. Highlighting how the amendments brought to criminal law after the Nirbhaya incident have not achieved the objective of speedy investigation and trial, the order passed by the Bench observes that:

The delay in such matters has, in recent times, created agitation, anxiety and unrest in the minds of the people.” (emphasis supplied)

And therefore,

We are, therefore, of the view that it is necessary to take stock of the implementation of provisions of criminal law, including the said amendments, relating to rape cases and other sexual offences. It is necessary to call for information with regard to status of affairs at ground level from various dutyholders like investigation agencies, prosecution, medico-forensic agencies, rehabilitation, legal aid agencies and also Courts to get a holistic view to make criminal justice system responsive in the cases of this nature.” (emphasis supplied)

Thereafter, the Court “considered it appropriate” to seek not one, but TWELVE separate status reports on a variety of issues pertaining to all police stations in the country. I request the readers to peruse the order (hyperlinked above) and form their own opinion on the Apex Court’s priorities. Please note the breadth of information sought for by the Supreme Court when only a few days ago, the same Bench had declared that they do not have time to waste on fact finding in relation to police brutality against student protestors in Delhi and elsewhere. Please also note that a Senior Advocate was promptly appointed as Amicus Curiae and, in addition, the Secretary General of the Supreme Court, as well as the Solicitor General, were requested to extend their co-operation.

To have a further idea on the kind of cases where the Supreme Court thinks it does have time for fact-finding, please see the table below. It contains details of cases that were registered as suo moto writs (‘SMW’) in the last 5 years at the direction of the Court itself.

1. SMW (C) 1 / 2019 In Re Matter of Great Public Importance Touching Upon the Independence of the Judiciary – mentioned by Sh. Tushar Mehta
2. SMW (C) 2 / 2019 In Re Felling of Trees in Aarey Forest (Maharashtra)
3. SMW (C) 3 / 2019 In Re Alarming Rise in Air Pollution in Delhi and Adjoining Areas
4. SMW (C) 4 / 2019 In Re Severe Problem Being Faced by the Citizens in Delhi and Adjoining Areas Due to Acute Air Pollution
5. SMW (Crl.) 1 / 2019 In Re Alarming Rise in the Number of Reported Child Rape Incidents

Amicus curiae – Mr. V Giri, Sr. Adv.

6. SMW (Crl.) 2 / 2019 In Re Missing of an LLM Student at Swami Shukdevanand Law College (SS Law College) from Shahjahanpur UP
7. SMW (Crl.) 3 / 2019 Ghanendra Pal Singh

Letter addressed to Secretary General of Supreme Court.

8. SMW (C) 1 / 2018 RK Sareen v. RK Kulshreshtha

SMW against order of Disciplinary Authority in relation to a bribe – due to prolonged period of litigation

9. SMW (C) 2 / 2018 In Re Filling Up of Vacancies
10. SMW (Crl.) 1 / 2018 In Re Kathua Jammu and Kashmir
11. SMC (Crl.) 2/2018 In Re The Indian Express and The Tribune Dated 2nd May 2018 Regarding Kasauli Incident

(regarding unauthorised hotels and guest houses in Kasauli)

Orders seek status reports from Govt. on names of officers posted at the time of illegal constructions, guidelines to prevent such constructions, specific steps on how the problem is to be tackled, steps taken for demolition.

Amicus curiae was also appointed.

12. SMW (C) 1 / 2017 In Re Central Selection Mechanism for Subordinate Judiciary
13. SMW (Crl.) 1 / 2017 In Re To Issue Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials

Amicus curiae – Sidharth Luthra, Sr. Adv., Basant R., K Parmeshwar

Reports sought from all States and UTs on their suggestions

14. SMW (C) 1 / 2015 In Re Outrage as Parents End Life After Child’s Dengue Death

Amicus curiae – Colin Gonsalves, Sr. Adv.

15. SMW (C) 2 / 2015 In Re Muslim Women’s Quest for Equality
16. SMW (Crl.) 3 / 2015 In Re Prajwala Letter Dated 18.02.2015 Videos of Sexual Violence and Recommendations

(regarding blocking child pornography, gang rape imagery, videos and sites on content hosting sites)

17. SMW (Crl.) 1 / 2014 In Re Harassment and Physical Abuse of Ms. ‘M’ v. State of Chattisgarh
18. WP (C) 406 / 2013 Re Inhuman Conditions in 1382 Prisons

Order dt. 08.05.2018 – directs all HCs to take up matters relating to prison conditions as suo moto writs.

19. WP (C) 95 / 2012 Devika Biswas v. Union of India

(regarding sterilisation procedures for women)

Detailed directions passed in an Art. 32 writ.

Order dt. 14.09.2016 requests certain HCs to take up the matter as suo moto writs – states which had given inadequate responses to SC.

Apart from seeking information directly from Union / State Government(s) by way of status reports, it is very common for the Supreme Court to appoint Special Investigation Teams (‘SITs’) for fact finding purposes. In Ram Jethmalani v. Union of India, the Petitioner’s prayer for appointment of an SIT to investigate unaccounted monies allegedly stashed abroad was allowed and the Court observed:

“45. The resources of this court are scarce, and it is over-burdened with the task of rendering justice in well over a lakh of cases every year. Nevertheless, this Court is bound to uphold the Constitution, and its own burdens, excessive as they already are, cannot become an excuse for it to not perform that task. In a country where most of its people are uneducated and illiterate, suffering from hunger and squalor, the retraction of the monitoring of these matters by this Court would be unconscionable.”

47. The merits of vigour of investigations, and attempts at law enforcement, cannot be measured merely on the scale of what we accomplish with respect to what has happened in the past. It would necessarily also have to be appreciated from the benefits that are likely to accrue to the country in preventing such activities in the future. Our people may be poor, and may be suffering from all manner of deprivation. However, the same poor and suffering masses are rich, morally and from a humanistic point of view. Their forbearance of the many foibles and failures of those who wield power, no less in their name and behalf than of the rich and the empowered, is itselfindicative of their great qualities, of humanity, trust and tolerance. That greatness can only be matched by exercise of every sinew, and every resource, in the broad goal of our constitutional project of bringing to their lives dignity. The efforts that this Court makes in this regard, and will make in this respect and these matters, can only be conceived as a small and minor, though nevertheless necessary, part. Ultimately the protection of the Constitution and striving to promote its vision and values is an elemental mode of service to our people

48. We note that in many instances, in the past, when issues referred to the Court have been very complex in nature, and yet required the intervention of the Court, Special Investigation Teams have been ordered and constituted in order to enable the Court, and the Union of India and/or other organs of the State, to fulfill their constitutional obligations. The following instances may be noted: Vineet Narain v Union of India, NHRC v State of Gujarat, Sanjiv Kumar v State of Haryana, and Centre for PIL v Union of India.”

It is possible to create a similar table as the one above for situations where the Supreme Court has actively sought information to be placed before it. It is also possible to list out innumerable instances where the Supreme Court has exercised its jurisdiction even where the petitioner did not first move the High Court. But the point of this post is not to create an exhaustive glossary of such instances, but to highlight that the Court’s observations on their inability to undertake fact-finding exercises borders on disingenuous.

Whether or not one agrees with these policy choices of the judiciary is besides the point, for today we are at a place where fact-finding by Courts is practically a norm, and as the Supreme Court’s orders confirm, it is still true today. Unfortunately, despite the normalising of this practice, there has been no formalising of the process that governs how the Supreme Court chooses to exercise its discretion, rendering it subject to the vagaries of an individual judge’s idea of justice.

There was a time when the Supreme Court was lauded for its activism when the other branches of government failed. The historic move by sitting Justices to physically proceed to inspect prison conditions in Delhi, or to go and inspect the working conditions of bonded labourers, were the foundations upon which a people based their faith in the Court and relied on it to do justice rather than merely apply the law. At a time where people’s faith in the judiciary is at a trough, and there has been vocal support for executive killings of suspects owing to frustration with judicial delays, the judges would do well to bear in mind that all their choices convey a message. Judicial intervention cannot come to resemble the executive arbitrariness it was designed to protect against.